United States v. Juan Almaraz-Luevano

FILED
NOT FOR PUBLICATION NOV 14 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-50565
Plaintiff - Appellee, D.C. No. 3:11-cr-04190-JLS-1
v.
MEMORANDUM*
JUAN MANUEL ALMARAZ-
LUEVANO,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Janis L. Sammartino, District Judge, Presiding
Submitted November 6, 2013**
Pasadena, California
Before: O’SCANNLAIN, GRABER, and BEA, Circuit Judges.
Appellant Juan Manuel Almaraz-Luevano timely appeals his conviction
under 8 U.S.C. § 1326 for being a deported alien found in the United States.
Appellant seeks to attack collaterally both of his underlying deportation orders
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
upon which his conviction was grounded. Reviewing de novo the district court’s
denial of Appellant’s motion to dismiss the indictment, United States v. Ramos,
623 F.3d 672, 679–80 (9th Cir. 2010), we affirm.
Appellant fails to show that he was prejudiced by the immigration judge’s
(“IJ”) failure to inform him of the possibility of, then available, relief under §
212(c) because Appellant would not have had “plausible grounds for relief under §
212(c)” had he been informed of, and requested, such relief. United States v.
Gonzalez-Valerio, 342 F.3d 1051, 1054 (9th Cir. 2003). Based on the factors upon
which IJs formerly relied in assessing § 212(c) petitions for relief, Yepes-Prado v.
INS, 10 F.3d 1363, 1366 (9th Cir. 1993), Appellant fails to meet the heightened
showing of “outstanding equities,” which would have been required because of
Appellant’s two felony drug convictions. See Ayala-Chavez v. INS, 944 F.2d 638,
641 (9th Cir. 1991). In particular, “the existence, seriousness, and recency of any
criminal record” would have weighed heavily against Appellant’s petition,
especially given the fact that he had been convicted of four crimes in the five years
preceding his 1997 removal proceeding, including three felony convictions, one of
which occurred just weeks before his removal proceeding. Yepes-Prado, 10 F.3d
at 1366. Because we find that Appellant’s 1997 removal order serves as a valid
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underlying basis for his conviction under 8 U.S.C. § 1326, we need not consider
the validity of his 2009 removal order.
We further affirm the district court’s imposition of the one-year term of
supervised release to follow Appellant’s prison sentence. Appellant argues that the
district court’s imposition of the one-year term of supervised release contravened
the November 1, 2011, amendment to the United States Sentencing Guidelines §
5D1.1, which provides that: “In a case in which the defendant is a deportable alien
. . . and supervised release is not required by statute, the court ordinarily should not
impose a term of supervised release.” U.S.S.G. § 5D1.1 cmt. n.5. However, that
same amendment to the Sentencing Guidelines also provides that: “The court
should . . . consider imposing a term of supervised release on such a defendant if
the court determines it would provide an added measure of deterrence and
protection based on the facts and circumstances of a particular case.” Id. Because
the district court imposed the one-year term of supervised release based on
Appellant’s “criminal history and demonstrated defiance of court orders,” the
district court’s sentence does not constitute an abuse its discretion. See United
States v. Apodaca, 641 F.3d 1077, 1079 (9th Cir. 2011).
AFFIRMED.
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